[Avodah] [Areivim] ISRAEL: Transgender Husband Says He's Now A Woman And Can't Give A Get

[Micha Berger via Avodah]

I should point out that in addition to disagreeing with the Tzitz Eliezer
(ZE) by invoking chromosomes -- which I agree should be outside halakhah --
internal organs and historical organs at time of birth would ordinarily
be within the purview of halachic discussion. Machloqes is tenable,
and indeed, exists.

There is less history of discussion of how to assign halachic gender to
a post-op transsexual than of discussion of surgery on an androgenus
or metumtum and the halachic impact.

And along those lines, R' Alfred Cohen has an article in the RJJ
Journal, Fall 1999
<http://www.daat.ac.il/daat/english/journal/cohen-1.htm>.
His focus appears to be morw about permissibility of adjusting an
androgenus or metumtum to a single gender, but along the way there
are indications about the halakhah we're discussing -- the resulting
gender post-op.

Notably, RMShternbuch appears to leave the androgynus in their safeiq
status, the ZE (REW) was already discussed,
the Ibn Ezra (as read by RYSE) would consider future relations to be
mishkav zakhar despite being assigned femal gender (again, gender does
not change with surgery), whereas
RYSElyashiv would consider all bi'ah to be shelo kedarka -- which sounds
much like the ZE in theory, in that the issur is that and not mishkav
zakha -- an issur that presumes that being assigned female sex surgically
does change halachic gender to female. But in discussing a different din
than the ZE's case of gittin, one in which he still ends up machmir.

Now for the most relevant postion of RAC's article:

   Doctors usually want to "fix" the hermaphrodite or one who has
   ambiguous sexual organs by turning the child into a "girl" through
   removal of the male organs. (They also usually construct a vagina-like
   opening and administer hormones or hormone-suppressants, as needed.)
   Consequently, one of the first issues that has to be dealt with is
   the biblical prohibition of "petzua daka" (Devarim 23:2), marriage
   with whom is forbidden by the Torah. [35]

   Furthermore, as noted, the androgynous is considered by Jewish law as
   possibly a male and possibly a female, and therefore obligated to
   observe all the commandments incumbent upon a man. By turning the
   person into a female only, the doctors are taking away from this person
   the ability and the privilege of performing certain mitzvot. Again,
   this is a halachic problem.

   If the doctors turned this child into a female (through surgery and
   hormone therapy) but the child is actually a male, [36] and this "female"
   grows up and gets married to a man-would this constitute a homosexual
   relationship, which is strictly censured by the Torah? [37]

   To avoid these multiple problems, Rav Sternbuch writes [38] that a child
   with ambiguous sexual indicia should always be "turned" into a male
   rather than a female. The only exception [39] would be in the case of a
   child which is clearly a female (verifiable by her having all the
   external female organs), although possessing in addition certain
   ambiguous traits. [40]

   One of the leading poskim in the world today is the Israeli sage, Rav
   Eliezer Waldenberg, author of Tzitz Eliezer, who is often consulted
   particularly on medical problems. A doctor was once confronted with a
   case of a child born with apparent intersex characteristics, and he
   turned to Rav Waldenberg for guidance. In addition to addressing the
   specific problem, Rav Waldenberg availed himself of this opportunity to
   expand upon his view concerning similar situations and how they should
   be dealt with.

   The child in question was born with external organs which seemed to be
   female; however, there also seemed to be an organ resembling testes.
   Further complicating the situation was that a chromosomal test of the
   infant indicated it was a male. After surgery, it was found to have no
   internal sexual organs. The doctor wrote that it was medically easier
   to make the child into a girl, but asked two questions: is it
   permissible to make a child whose genetic identity is male, into a
   female? Further more, is it forbidden to remove the "testes"?

   In his responsum, Rav Waldenberg lays down the principle that in these
   matters, the determining factor is the appearance of the external
   organs: the key is the visual perception. Consequently, he rules that
   since all the external organs of this child are of a girl, it is a
   girl. [41] The only problem is removal of the testes, which is forbidden
   due to the prohibition of castration. However, in this case he rules,
   since the child is a girl, one can remove the testes, since that
   operation is not what would make her sterile. Furthermore, even if a
   child were an androgynous, it would still be permissible to remove the
   testes, without violating the prohibition of sterilization - since in
   any case this child is not capable of having a child. This conclusion
   is based on the Minchat Chinuch, [42] who rules that the prohibition
   against sterilizing (sirus) cannot apply to a person who cannot have
   children anyway. [43]

   Having given an answer to the specific problem raised by the doctor,
   Rav Waldenberg then proceeds to expand upon the topic. Considering that
   this issue is on the cutting edge of modern medical knowledge and
   technique, his responsum is a highly pertinent foundation for
   addressing the halachic issues which are now arising.

   In the view of Rav Waldenberg, even if a true androgynous were born,
   having both sets of external organs (a circumstance which is very
   rare), it is permissible to remove some of these excess organs. This
   ruling is predicated on the halachic and medical conclusion that the
   child would not be able in any case to have children. The next question
   then is which set of organs to remove or modify? According to Rav
   Waldenberg, it is preferable to make this child a boy, for two reasons:

   (A) Since there are those who opine that an androgynous can have
   children, and
   (B) Since we are not certain whether the child is actually a boy or a
   girl, by removing the female organs we are making a child into a boy,
   who will be able to perform more mitzvot. Consequently, that is the
   desirable choice.

   At this point, Rav Waldenberg adds a most controversial opinion: if it
   were advisable (medically) to turn this hermaphrodite into a female,
   that option is halachically permissible. By removing the male organs,
   the child will be able to function as a female. According to him, the
   sexual identity of the child is not established until after the
   procedure. [44] He is also of the opinion that it is best to perform this
   procedure while the child is still quite young, before it is obligated
   to perform mitzvot. [45] There is a further caveat added by Rav
   Waldenberg: before any organs are removed, it is necessary to determine
   if the procedure would indeed result in the child's being truly a
   female (presumably this could be determined by means of sophisticated
   medical scans and / or genetic analytical tests). [46]

   A third opinion on this matter is expressed by Rav Eliashiv, [47] whose
   view is that if this ambiguous child were transformed into a "girl" by
   medical science, it would be forbidden for any man to have sexual
   relations with her. Since her "vagina" is merely an opening constructed
   by doctors, there are no sexual relations but rather "wasting of the
   man's seed", which is an act forbidden by the Torah (Vayikra 18:22). [48]
   Furthermore, in his commentary on his verse, Ibn Ezra cites the opinion
   of Rabbenu Chananel, which posits that intercourse between a male and
   another male who has an artificial vagina is considered sodomy.

   In summary, we are left with three halachic opinion: [49]
   (A) Make the child into a boy.
   (B) It is preferable to make the child a boy, but it is permissible to
   make it a girl.
   (C) It is forbidden to make it a girl.

   Sex Change

   The option of "changing" a person's sex which the halacha addresses is
   certainly and obviously not merely fulfilling someone's whim. According
   to Nishmat Avraham, there is no question that this is not permitted for
   a normal male/female. [50]

   Even in cases where doctors felt it was necessary to alter or "adjust"
   the sexual identity of a child born with ambiguous genitals, or for
   some other traumatic reason, it seems that the procedure is not as
   successful as it may superficially appear to be. A case was recently
   reported in the news media [51] of a boy who, due to a dreadful accident
   when he was eight months old, was "turned into a girl" by his concerned
   doctors. In spite of surgery, hormone administration, and all the
   cultural trappings of a girl-dolls, dresses, etc. - the child's
   transition was not as seamless as it appeared. "...Despite his
   feminized body and upbringing, John in fact rejected his new gender. He
   tore of the dresses, dreamed of becoming a mechanic and even tried to
   urinate standing up - despite his reworked anatomy." "I thought I was a
   freak or something," he told the study's authors. After finally finding
   out the truth about his status, he proceeded to have his breasts
   removed and his genitals rebuilt. At 25, he married a woman and adopted
   children.

   Researchers say that this case, though unusual, has important
   implications for the issue of influencing sexuality. "You can't
   magically decide somebody is either male or female." [52]

   Some unusual problems do occasionally arise if a tumtum or androgynous
   was "fixed" as an infant and later in life feels the need for a change
   in sexual identification. Rav Eliezer Waldenberg spends a considerable
   amount of time examining various aspects of this dilemma: [53] If, after
   marriage, a man or woman undergoes a sex change operation, does the
   other spouse have to give (or receive) a get? Although he does not
   specifically say so, it is apparent from his writing that Rav
   Waldenberg assumes that any person undergoing such a change must have
   been originally a tumtum/androgynous, who was operated on to create a
   specific sexual identity. [54] Rav Waldenberg even speculates what
   blessing this person should recite in the daily prayers - those for a
   man or a woman? [55] Perhaps, he suggests, the blessing should be
   reworded, "Blessed are You... who changed me into a..."

   Is Surgery Required?

   How about the option of doing nothing - what would be the halachic
   status of a tumtum/androgynous?

   The optimal response when a tumtum or androgynous is born might appear
   to be to seek medical advice and employ whatever surgical techniques
   are available to obviate the problem or at least to seek to determine
   the true sexual identity of the child.

   Surprisingly, the Rishonim do not agree as to the correct halachic
   approach: Rashba [56] opined that the child should be operated on if
   possible, and, if found to be masculine, should be circumcised. [57]
   ...

   35. The author of Nishmat Avraham, Even HaEzer 44, reports that Rav.
   S.Z. Auerbach wrote to him that the prohibition of petzua daka refers
   only to the issur of such a person getting married, but that there is
   no special negative commandment about making someone into a petzua
   daka. This should not be confused with the negative commandment of
   sirus.
   36. This possibility is not as bizarre as it sounds. In 1998, The New
   York Times featured an article about an individual to whom this was
   done. For decades, the child was brought up as a female, but "it never
   felt right." Finally, he had the operations reversed and assumed his
   true identity as a man-even getting married to a woman! See further on
   this at the end of this article.
   37. In Hama'or Kislev-Tevet 5733, Rabbi Amsel suggests that even
   administering female hormones to a male may be forbidden, under the
   prohibition of a man's wearing women's garments.
   38. Assia I, p. 144.
   39. Nishmat Avraham, ibid, reports that Rav Auerbach agreed with him on
   this point.
   40. For example, sometimes what appears to be a penis is in reality an
   enlarged clitoris.
   41. Tzitz Eliezer, XI, no. 78
   42. 291, note 4. See also Chatam Sofer, Even HaEzer 20 and 17.
   43. However, see the Chazon Ish, Even HaEzer 13, s.v. "vehaRashba". In
   Shabbat 111a, the Gemara states that the prohibition of sirus
   (castration, sterilization) does not apply to an elderly person. Even
   though the Gemara ultimately rejects this view, the Minchat Chinuch
   apparently feels that the concept has validity, even if it did not
   apply to the particular situation under discussion in the Talmud. See
   also, Sefer Hasidim 620 and Assia I, p. 143.
   44. He maintains that this is also the opinion of the Meiri in Yevamot;
   in my view, it may also be the solution to a cryptic statement by the
   Rogachover Rebbe in his Tzafnat Paneach (Yibum, chap. 10, Kelaim, 10,
   Shut 60:144). The Rogachover writes that the sexual identity of a
   tumtum who is operated on becomes established only at that point, and
   not retroactively. However, this is disputed by the opinion expressed
   in the Tosafot Yevamot 83, s.v. "Beria...", which holds that the
   surgery merely reveals and elucidates that which was really there
   before, but hidden from our view.
   45. See the question of R. Neuwirth, cited in Nishmat Avraham, Even
   HaEzer p. 137.
   46. Rav Waldenberg does speculate whether we should conclude that
   medical science has perfected treatment of the situation. For an
   understanding of why it might make a difference which rationale is
   employed, and when it is proper to fall back on the argument that there
   has been a change in our physical nature, see the article by Rabbi
   Dovid Cohen on "Shinuy Hatevah" in the Journal of Halacha and
   Contemporary Society, Vol 31.
   47. In Shevilei Harefuah, 5739, pamphlet 2, 5739.
   48. See Even HaEzer 20: "Whoever has sexual relations with a woman via
   one of her limbs, is to be punished by the Court (because of "wasting
   seed")."
   49. Avnei Nezer, Yoreh Deah 322, describes a child born with a penis
   and testicles; however, there is no opening in the penis, but rather at
   the point where the penis and testicles meet. He rules that the child
   is certainly a male and requires a brit. The Beit Yosef Even HaEzer 5
   quotes the Rosh that such a child is certainly capable of begetting
   children and that he requires milah.
   50. Nishmat Avraham, Even HaEzer 44, note 3. Interestingly, he cites no
   proof for his ruling. However, see Tzitz Eliezer XXV, chapter 26, no.
   6.
   51. Newsweek, March 24, 1997, p. 66.
   52. Ibid.
   53. Tzitz Eliezer, section 10, 25:26:6. He cites the Terumat HaDeshen
   102, Rashi to Yevamot 49a, Minchat Chinuch 203, Birkei Yosef Even
   HaEzer 17, and others. It is noteworthy that this question is also
   discussed in Teshuvot Besamim Rosh, ibid, but not quoted by Rav
   Waldenberg. Possibly this is due to the problematic authorship of
   Besamim Rosh which, although attributed to the Rosh, who lived in the
   13-14 century, could not have been written by him. Or at least, some of
   the responsa were not written by the Rosh as a case in point, the one
   at issue here mentions an opinion of the Noda Biyehuda, who lived in
   the eighteenth century!
   54. In passing, Rav Waldenberg touches on a different halachic
   question: he is of the opinion that if the female organs were removed
   from an individual and transplanted into another female (who was
   lacking them), who thereafter conceived and bore a child, that child is
   definitely the offspring of the birth mother, not the organ donor.
   55. It is interesting that he does not relate this to the milah problem
   which a convert has concerning the blessing "...who has not made me a
   gentile..."
   56. Yevamot 70a, "efshar lo achshav likora, uvar minhol hu." See Sefer
   Habrit, pp. 94-95, for various explanations of these divergent
   opinions.
   57. Yevamot, ibid. R. Akiva Eiger writes in his notes to Yoreh Deah
   262:3 that "there is no obligation to operate on and [subsequently] to
   circumcise a tumtum, and this is clear..."

Tir'u baTov!
-Micha

-- 
Micha Berger             "Fortunate indeed, is the man who takes
micha at aishdas.org        exactly the right measure of himself,  and
http://www.aishdas.org   holds a just balance between what he can
Fax: (270) 514-1507      acquire and what he can use." - Peter Latham